The Weekly Pulse: 14th – 18th November

What’s HOT in our Regulatory World at the moment?

What are our clients looking at?

This week’s trending sources in C2P

• UK: Using the UKCA Mark, Guidance Document, Revised, November 2022
• China: Approval of 555 Industry Standards, Announcement No. 10, April 2022
• Germany: Chemicals Law BGBl. 1718, 1980 – Proposed Amendment – (on the establishment of a National Poisons Register, etc) Draft Law, November 2022

What is our Content Team talking about?

UK announces that businesses will be allowed to use CE Marking until 31 December 2024 amongst other favourable changes – Siddhant Shahane

The UK Conformity Assessed (UKCA) marking has been introduced as part of the UK’s own robust regulatory framework.

It shows that products comply with UK product safety regulations which are designed to protect consumers.

On 14 November 2022, the UK Department for Business, Energy & Industrial Strategy published plans to give an additional 2 years to apply UKCA marking, giving thousands of businesses the freedom to focus on growth.

Highlights Of The News Announcement:

• The government will continue to recognise the CE marking for 2 years. Businesses can also use the UKCA marking, giving them the flexibility to choose which marking to apply. Whilst the UKCA marking can be used now this extension means businesses can choose to use the CE marking until 31 December 2024.
• To reduce labelling costs, businesses will be allowed to affix the UKCA marking and include importer information for products from EEA countries on an accompanying document or label until 31 December 2027.
• UK will also allow conformity assessment activities for CE marking undertaken by 31 December 2024 to be used by manufacturers as the basis for the UKCA marking, until 31 December 2027.
• To extend the deadline, the government has laid secondary draft legislation before Parliament which, subject to parliamentary approval, will implement these measures. C&R will be adding this draft legislation to C2P imminently. 

To support manufacturers, the government is also reviewing the wider product safety framework, ensuring we minimise the burdens on business while keeping our system up to date with new innovative methods such as e-labelling.

What are our Knowledge Partners talking about?

Turkey – WEEE: Draft WEEE Regulation aims to complement RCF financing and Zero Waste collection regimes – Sagis

A draft WEEE Regulation proposes to require EEE producers to either pay the Recycling Contribution Fee (RCF) to the treasury or establish a DRS for their WEEE.

Even when choosing to pay the RCF, a producer will be required to organise and finance WEEE collection and recycling campaigns at least twice a year.

Currently regulated under the 2012 WEEE Management Regulation, Turkey’s PRO-centric EPR regime on WEEE has been largely ineffective: only 0.4 kg per capita (3% of POM) were collected in 2017, far below the 2kg mandated in that year.

The low performance was blamed on insufficient financing due to free-riding and a large informal WEEE recycling sector that impeded producers’ access to WEEE. 

The PRO-centric EPR regimes for packaging and batteries faced similar challenges.

To improve the recovery of recyclable waste streams, a 2018 amendment to the Environment Law shifted the EPR regimes away from a PRO-centric to a mainly state-fund-based EPR model, which provided the legal framework for requiring producers of a wide range of products and packaging to pay a Recycling Contribution Fee (RCF) to the treasury from Jan-20 (unless they participated in a vaguely-described nationwide DRS). 

The RCF financing regime was complemented by the Jul-19 Zero Waste Regulation which requires municipalities and public institutions to plan and establish separate waste collection systems, including those for waste streams that are subject to EPR. After the introduction of the RCF regime, the PRO-centric end-of-life regulations on packaging, EEE and batteries remained in place unchanged.

This resulted in inconsistent and double obligations for producers and uncertainty about the future role of PROs.  

The draft WEEE Management Regulation, released on 7-Jul-22, would replace the 2012 WEEE Regulation.  

To ensure consistency and complementarity with the Recycling Contribution Fee (RFC) regime and the Zero Waste collection systems, it proposes to:

• provide producers with two compliance options;
  – paying the RCFs to the treasury to support collection and recycling activities of the Zero Waste collection systems; or
  – establish a deposit-refund system (DRS) for their EEE.
• maintain limited organisational obligations for producers: they are not subject to collection targets but will be required to;
  – organise and finance WEEE collection (and recycling) campaigns at least twice annually; and
  – support the WEEE collection mechanism in a unspecified manner.

In addition, the Draft proposes notably the following provisions (of which some follow those of the Recast EU WEEE Directive):

• The producer definition is revised to include foreign entities distance selling EEE directly to end-users, which are to appoint an AR via written mandate. Online marketplaces remain unobligated.
• The EEE scope will be expanded to an open 6-category scope in 2024 covering both B2C and B2B EEE (from the current explicit-list 10-category scope). Notes: The RCF is already applied to an open 6-category scope. Amounts are set by Ministry Notices (latest 2022).  Batteries embedded in EEE continue to be managed according to the 2004 Batteries Regulation.
• New collection targets for B2C WEEE;
  – start in 2024 at 40% of the 3-year average POM, and increase by 5% annually to 65% by 2030. Only PV panels are subject to specific targets: 5% from 2025, increasing 5% annually to 30% by 2030;
  – are considered ‘national’ targets and hence the responsibility for meeting them lies with the Ministry together with all involved parties. Note: For the period 2018-2024 the MoE is responsible for ensuring that at least the 2018 B2C WEEE collection targets are met. The 2012 Regulation imposed targets on producers only until 2018 (4 kg per capita, broken down into EEE category specific targets). 
• The WEEE collection mechanism will rely on
  – municipalities who are required to collect WEEE through the infrastructure of the Zero Waste Management System in accordance with their Provincial Zero Waste Management System Plan;
  – EEE retailers who will continue to be obligated to take-back WEEE on a 1:1 basis free of charge (at the POS or on delivery), while those with a sales area of at least 400m2 are to take-back small WEEE (<25cm) on a 0:1 basis and display signage.

The draft does not provide PROs with a formal role:  Adherence to an authorised PRO (termed ‘authorised body’) is not a compliance option in the draft and as such does not qualify EEE producers for exemptions from the RCF payment.
The draft does, however, allow PROs approved prior to the publication of the new Regulation to continue to operate until the expiry of their authorisations*, facilitating the provision of their services for either the establishment of DRS and/or the bi-annual collection and recycling campaign obligation.

What are our Clients asking about?

“Per Article 13 of France’s anti-waste law 2020-105 (AGEC), proven and presumed substances with endocrine disrupting properties must be declared to consumers if present products. We have several questions about this requirement.

1. Where is the list of known and presumed EDCs? 
2. Is reporting required only if the concentration in a material is >0.1% w/w?
3. Do the known or presumed EDCs need to be listed separately?
4. Is the reporting of EDCs included under section IX of Decree Number 2022-748 of 29 April 2022 which requires declaration of hazardous substances, including SVHCs, or should EDCs be listed separately. Not under “Hazardous substance” but under a separate EDC category?
5. Is reporting required for electronics products where the EDCs are not in a part that is accessible to consumers?”

Answer by Dieudonné Ymedji

1. In accordance with Article 1 of Decree 2021-1110 on the provision of information identifying endocrine disruptors (EDC) in a product, the lists of substances with proven and presumed or suspected endocrine disrupting properties and the list of products presenting a particular risk of exposure will be set by joint order of the ministers in charge of health and the environment, on the proposal of the National Agency for Food, Environmental and Occupational Health Safety (ANSES). A draft order listing proven and presumed EDC is under consideration since October 2021. This draft not yet finalised, is available for download in C2P.
2. Decree 2021-1110 does not subject the supply of information obligation to any EDC substance threshold. Our understanding is that this obligation applies to anyone who places on the French market products intended for consumers which, at the end of the manufacturing process, contain substances which the ANSES has indicated as having proven, presumed or suspected endocrine-disrupting properties.
   
   However, in accordance with Decree 2022-748 on the environmental labeling of waste-generating products, the following statements on the label:
   – “contains a dangerous substance” apply where the hazardous substance in the product is greater than 0.1% by weight and 
   – “contains a substance of very high concern” + name of each of the hazardous substance when it is a SVHC within the meaning of points 1, 2 and 3 of Article 3 of EU REACH.
3. In accordance with the decree and the proposed implementing draft order, there shall be 2 separate lists, one for substances with proven and presumed endocrine disrupting properties and a different one for EDC classified as suspected.
4. My reading of this Section is that the reportable substances may include EDC currently included in the Candidate List and any other hazardous substance identified by Decree, taken after the opinion of  ANSES. As yet, no such Decree has been enacted.
5. Decree 2021-1110, main purpose is to provide consumers with transparent information on the presence of a substance with EDC properties in products (i.e. substances, mixtures, articles as defined in Article 3 of EU REACH). It does not make explicit reference to any part or category of electronic product, nor a specific exemption for EDC in inaccessible parts of products. 

However, the statement or introductory part of the Decree indicates that the obligation to provide information on the presence of EDC substances classified as suspected shall apply only to the product categories with a particular risk of exposure laid down in a joint Ministerial Order. It’s noteworthy that the Draft Order mentioned above does not provide such a list.

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